ECOLOGICAL CONTEXT FOR, AND BEGINININGS OF

CANADIAN EA LAW CML 4103

FEBRUARY 6, 2012

Stephen Hazell

Overview

• Theories of environmental assessment • The ecological crisis and single vision • Beginnings of legislated environmental

assessment in Canada• James Bay Hydro and Mackenzie Gas

Theories of environmental assessment

• A process for providing decision makers with relevant information about the likely environmental implications of a proposed development project, policy, program or plan

• A planning tool or part of a regulatory process?

• Information gathering as distinct from decision making

• Environmental assessment is not environmental protection, but . . .

Theories of environmental assessment (cont’d)

• Canadian Environmental Assessment Act (CEAA) s. 4 “The purposes of this Act are (a) to ensure that projects are considered in a careful and precautionary manner before federal authorities take action in connection with them, in order to ensure that such projects do not cause significant adverse environmental effects

(b) to encourage responsible authorities to take actions that promote sustainable development and thereby achieve or maintain a healthy environmental and a healthy economy . . . ”

Environmental Assessment

• Tool to reduce ecological footprints of Canadians, including carbon footprints

• Looking before we leap • Long-term vs. short-term perspectives

The Global Ecological Crisis

• Human actions are systematically reducing the life-supporting capacity of Earth’s ecosystems even as rising human populations and consumption are making heavier demands on those ecosystems

• Ecological footprint analysis (invented by Bill Rees UBC, conducted by WWF) shows that 1.5 “Earths” needed to support current human population at current consumption levels

• Earth’s natural capital is being drawn down

Global Warming is Real

• Warming of the climate system is unequivocal” and is “mainly due to human activities.” – Intergovernmental Panel on Climate Change (lPCC) 2007

• Catastrophic consequences are projected if GHG emissions allowed to continue unchecked – IPCC 2007

Why are the Atmosphere and Oceans changing?

The global increases in carbon dioxide concentration are due primarily to fossil fuel use and land use change while those of methane and nitrous oxide are primarily due to agriculture.” - IPCC 2007

Warmer Temperatures

•Globally, 20 of 21

warmest years ever

recorded have occurred

in the past 25 years. •Canada’s North

warming even more

rapidly.

Ecosystems Breaking Down

• Permanent Arctic sea ice has declined 7.8% a decade between 1953 and 2006 and could

disappear altogether by mid-century • Melting of Greenland and West Antarctic ice

sheets means rising sea levels (more than current 2 mm/year)

• Destruction of Canadian forests by mountain pine beetle and more fires

• Ocean acidification threatens diatoms, corals

Global Warming as Security Threat

• Climate change acts as a threat multiplier for instability in some of the most volatile regions of the world” - Military Advisory Board to U.S. Pentagon

• “Projected climate change will add to tensions even in stable regions of the world.”

• “Conditions in already fragile areas will erode as food production declines, diseases increase, clean water becomes increasingly scarce, and large populations move in search of resources”

Global Warming as Security Threat

• Climate change acts as a threat multiplier for instability in some of the most volatile regions of the world” - Military Advisory Board to U.S. Pentagon

• “Projected climate change will add to tensions even in stable regions of the world.”

• “Conditions in already fragile areas will erode as food production declines, diseases increase, clean water becomes increasingly scarce, and large populations move in search of resources”

How did we get to this crisis?

• Alienation from nature

• Even the most obvious ecological catastrophes (cod fishery collapse) are shrugged off

• Only disasters with vivid imagery (Chernobyl, Bhopal, BP Deepwater Horizon) capture fleeting attention

• Perceptions of nature indirect and faded

Single Vision and Newtons Sleep

Now I a fourfold vision see,

And a fourfold vision is given to me;

‘Tis fourfold in my supreme delight

And threefold in soft Beulah’s night

And twofold Always, May God us keep

From Single Vision and Newtons Sleep!

- William Blake

How did we get to this crisis?

• Human threat to the biosphere is rooted in a crisis of values

• Not merely a miscalculation about, say, the ozone-depleting characteristics of CFCs or levels of CO2 emissions triggering catastrophic climate change

• Single vision of “Progress” – drive to create and recreate human and non-human nature through technology has abolished idea of nature as a good in itself apart from monetary values

Environment as Object

When we go into the Rockies we may have the sense that gods are there. But if so, they cannot manifest themselves to us as ours. They are the gods of another race, and we cannot know them because of what we are, and we did. There can be nothing immemorial for us except the environment as object”

- George Grant

Environment as Object (Grant)

• Environment as object for scientific study and exploitation by progressing technologies

• Not as a spiritual homeland but aboriginal influences (?)

• Co-penetration of knowing and doing lead to a reality wherein nothing belongs to humans as humans except ability to engineer nature and ourselves

“Faint Intimations of Deprival” (Grant)

• No longer tuned in to the rhythms of nature. The roar of the dynamo of western civilization is too loud

• Faint intimations of deprival is all that can be discerned

• Environmental assessment as a way to listen to those faint intimations?

Single Vision to Ecovision

• Humans as part of nature not separate from it; human activities have limits

• Inter-relationships, diversity, dynamics

• Concepts of carrying capacity, resilience, and sustainability

• Progress measured by quality, well-being, integrity and dignity accorded to natural, social and economic systems

The Beginnings of Legislated Environmental Assessment

• Factors– Rise of environmentalism in North America– National Environmental Policy Act U.S. (1969)– Conflicts over James Bay and Mackenzie Gas

Projects led to settlements of aboriginal claims with legally binding environmental assessment regimes

– Berger Inquiry demonstrated an EA process that engaged public and led to good decisions

Environmental Assessment before James Bay/Mackenzie

• National Environmental Policy Act (U.S.) (1969)

• Federal policy to screen federal projects and Federal Environmental Assessment Review Office launched (1972)

• Cabinet directive broadens policy to apply to private sector projects (1973)

James Bay Hydro Project

James Bay Hydro Project

• Quebec began developing northern hydroelectric resources in the north in 1960s

• James Bay Hydroelectric Project (La Grande) was proposed in April 1971 without consultation with Cree and Inuit of northern Quebec

• Quebec Association of Indians won injunction on November 15, 1973 in Quebec Superior Court blocking development until agreement reached

James Bay Hydro Project

• Injunction overturned by Quebec Court of Appeal seven days later, but not legal requirement that Quebec negotiate treaty

• Negotiations continued for next year leading to agreement in principle between Canada, Quebec, Hydro-Quebec, Cree and Inuit

• James Bay and Northern Quebec Agreement (signed November 1975) includes EA regime for new development projects in Cree and Inuit regions

Mackenzie Valley Pipeline

Mackenzie Valley Pipeline

• Proposed natural gas pipeline from Beaufort Sea to northern Alberta along Mackenzie Valley, connecting to Prudhoe Bay along Yukon North Slope

• Canada issues Pipeline Guidelines in 1970, 1972

• Berger Inquiry established by order in council in 1974, reported in 1977

Mackenzie Valley Pipeline InquiryOrder in Council – Authorities

• Similar to inquiries under Inquiries Act• Summon witnesses and examine

under oath• Compel production of documents• Adopt practices and procedures in his

discretion• Engage technical advisors, counsel

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Mackenzie Valley Pipeline InquiryOrder in Council – Mandate

“inquire into and report upon the terms and conditions that should be imposed in respect of any right-of-way . . . for the purposes of the proposed Mackenzie Valley Pipeline having regard to (a) the social, environmental and economic impact regionally, of the construction, operation and subsequent abandonment of the proposed pipeline in the Yukon and Northwest Territories . . .

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Mackenzie Valley Pipeline InquiryKey Features

• “(T)his inquiry is not just about a gas pipeline; it relates to the whole future of the North”

• Addressed a wide range of issues not just biophysical impacts

• Held preliminary hearings seeking input on process and scope

• Travelled to all 35 communities to hear evidence from residents in own languages

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Mackenzie Valley Pipeline InquiryKey Features

• Held quasi-judicial hearings with counsel to hear and test evidence

• Established a board of government technical experts -- Pipeline Application Assessment Board

• Established independent Environmental Protection Board (scientists, engineers)

• Addressed Project’s cumulative effects

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Mackenzie Valley Pipeline InquiryTake Home Messages

• Public participation matters• Local residents have important

knowledge to offer • Canada must settle aboriginal claims in

northern Canada (Inuvialuit, Dene, Inuit, Yukon First Nations)

• Balance “Northern Frontier” against “Northern Homeland”

• Set the stage for federal environmental assessment processes for decades

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